What is a Shadow Jury?
It happens all the time. An attorney delivers an emotionally charged opening statement or a blistering cross examination. He or she sits down at counsel table and immediately whispers to a colleague “so how did that go?”
You might think that they’d already know. They were there! But trial is an exercise in education and persuasion. No matter how well it seems to be going, there is always some lingering doubt that the audience (the jury or judge) might not understand what you are saying or might not care for the parts that they do understand. And there are real consequences when an attorney fails to appreciate how effective a presentation has been. At best, the attorney risks beating a dead horse or boring a jury with information that they already understand. And at worst, they risk annihilating their credibility by harping upon arguments that the jury either does not understand or has totally rejected.
One of the ways to mitigate those risks is to run focus groups before a trial begins. An attorney can practice parts of their presentation in front of strangers drawn from the community and then obtain detailed feedback concerning how they respond to it. These focus groups can be extremely helpful. But even the best focus groups cannot fully replicate the dynamic environment of a trial itself. And in some cases, it is it is very difficult to accurately predict the story that will be told by opposing counsel or the specific evidentiary rulings issued by the court.
So, you might ask, “can I run a focus group in the actual courtroom?” And if that’s what you’re interested in, you should consider a shadow jury.
A shadow jury is a group of lay individuals drawn from the community who are paid to attend trial and give real time feedback on what transpires each day. There are many variations, but each have some common elements.
First, shadow juries are typically arranged by outside vendors (usually jury consulting companies) rather than attorneys themselves. The shadow jury members are selected and hired by the outside vendor on the first day of trial. The shadow jurors are usually not told which party is receiving their guidance. While that secrecy might sound suspicious, this mystery is designed to eliminate bias in favor of the party paying the bills.
Second, shadow juries are designed to mirror the real jury in at least some respects. At a minimum, they are usually recruited from the same community as the jury itself. But I’ve seen cases where the jury consultants literally recruited people who were called for jury service in the same courthouse (but not chosen for a jury) to serve on a shadow jury. Some consultants go even further, attempting to identify potential shadow jurors that match the ages, races, religions, educational attainments, and professional backgrounds of the people actually serving on the jury.
Third, shadow juries sit in the public benches in the back of the courtroom and observe the entire trial, just as a reporter might. When there are evidentiary arguments or other matters handled outside the presence of the jury, the shadow jurors also leave so that they are not privy to more facts than the real jurors. At the end of each day, each shadow jury member is asked detailed questions by the vendor about the testimony and arguments that they heard. The vendor then prepares a daily summary report for counsel.
Running a shadow jury promises real benefits. Shadow jury members can offer unbiased feedback in real time that incorporates everything that the real jury members see or hear. To the extent that testimony or evidence was confusing, or mistakes were made in a presentation, attorneys have the ability to clarify or correct those points on the following day. Shadow juries can also offer insights in which arguments have landed successfully and which jurors might already be won or lost at various points in the trial.
There are also potential downsides to running a shadow jury. The most obvious is cost. Paying shadow juries and the consultants who administer them can be extremely expensive and potentially unjustifiable depending on the amount at issue in the case.
And things do occasionally go off the rails with shadow juries. For example in Lafferty v. Stevens Mem'l Hosp., [1] a party moved for a mistrial after the other side’s shadow juror walked into the actual jury lounge and started chatting up the real jury. You might think that this was freak occurrence, but motions for mistrials based upon interaction between shadow jurors and real jurors have actually happened in multiple cases. [2] And it’s not hard to see why. Both jurors and shadow jurors are showing up to the same place every day. They are ordinary people without legal training. Unless specifically warned, they may not be sensitized to the problems that could arise in striking up a random conversation with another “normal person” that they recognize.
There are other potential complications. Occasionally opposing counsel will get wind of a shadow jury and try to make hay out of it during the case, even arguing to the actual jury that there is something untoward about it. [3] To avoid this kind of chicanery, attorneys can seek a motion in limine precluding argument about focus groups, shadow juries, or jury consultants as an irrelevant distractions. [4] While this risks tipping off the other side that you intend to workshop the case, in matters with large amounts at issue, they should probably assume that anyway.
But perhaps the largest risk of running a shadow jury is overweighting the information that it provides. While a shadow jury can provide useful feedback, it cannot precisely duplicate the individualized experiences or impressions of an actual jury. And like any focus group, there are selection biases at play – people with demanding jobs or childcare responsibilities may be legally compelled to serve on juries but are unlikely to volunteer for a shadow jury, even if well-compensated. So, it is important not to drastically alter trial strategy based upon idiosyncratic opinions of individuals who are not actually on the jury.
However, so long as the information is used responsibly, shadow juries are a potentially powerful tool to improving trial presentation and calibrating trial strategy.
[1] 136 Wash. App. 1027 (2006) (“About a week and a half into the trial, defense counsel observed the shadow jurors enter the jury lounge during the lunch hour and have contact with a juror on the Lafferty case.”).
[2] See, e.g., Mercado v. Warner-Lambert Co., 106 S.W.3d 393, 395 (Tex. App. 2003) (denying motion for mistrial based on shadow juror asking jurors for a cigarette during smoke break).
[3] See BASF Corp. v. Lyondell Chem. Co., Case No. A-1119-07T2, 2010 WL 5288645, at *15 (N.J. Super. Ct. App. Div. Dec. 28, 2010) (counsel argued that defendant “did not trust the jury” because it was using a shadow jury).
[4] Many courts have granted such motions. See Hillman Grp., Inc. v. KeyMe, LLC, Case No. 2:19-CV-00209-JRG, 2021 WL 1248180, at *5 (E.D. Tex. Mar. 30, 2021) (barring “argument, evidence, testimony, insinuation, reference, or assertion regarding the use of jury studies, jury consultants, focus group studies, mock trial teams, or shadow juries.”).
